USA v. Michael Diaz

Filing

UNPUBLISHED OPINION FILED. [09-60869 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 09/24/2010 for Appellant Michael A. Diaz [09-60869]

USA v. Michael Diaz

Doc. 0

Case: 09-60869

Document: 00511224432

Page: 1

Date Filed: 09/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60869 S u m m a r y Calendar September 3, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M I C H A E L A. DIAZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 3:09-CR-47-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M ic h a e l A. Diaz appeals his sentence following his guilty plea conviction fo r failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). Diaz w a s previously convicted under the Uniform Code of Military Justice of indecent a c t s with a child and upon his release was required to adhere to the sex offender r e g is t r a t io n requirements. However, after his release, Diaz failed to register as a n offender in Alabama, Mississippi, Nevada, Tennessee and Wyoming although h e lived for a period of time in each. Diaz pled guilty to failing to register and
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-60869

Document: 00511224432 Page: 2 No. 09-60869

Date Filed: 09/03/2010

a t sentencing the district court calculated his guidelines sentencing range, p u r s u a n t to U.S.S.G. § 5G1.1(b), as 15 to 21 months. The district court elected t o impose a non-guidelines sentence and sentenced Diaz to a 96-month term of im p r is o n m e n t. Diaz argues the sentence is both procedurally and substantively unreasonable. We affirm. D ia z first argues that the district court committed procedural error by fin d in g that his statute of conviction imposed a five-year mandatory minimum s e n te n c e , thereby raising his guidelines sentencing range, pursuant to U.S.S.G. § 5G1.1(b), from 15 to 21 months to 60 months. Because Diaz did not raise this is s u e in the district court, review is for plain error.1 To prevail, Diaz must show a forfeited error that is clear or obvious and affects his substantial rights.2 This c o u r t has the discretion to correct such error if it "seriously affect[s] the fairness, in t e g r it y , or public reputation of judicial proceedings." 3 D ia z fails to show clear or obvious error regarding the relevant statement m a d e by the district court during the sentencing hearing. Taken in context, it is evident that at the sentencing hearing the district court was referring to the m a n d a t o r y supervised release term of at least five years to life. The district c o u r t adopted the presentence investigation report which correctly identified the s t a t u t o r y minimums and maximums. Even if it were assumed that the district c o u r t committed clear or obvious error, Diaz cannot prevail under plain error r e v ie w because he cannot show that the error affected his substantial rights.4

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United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See id. (internal quotation marks and citation omitted).

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See United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) ("A sentencing error affects a defendant's substantial rights if he can show a reasonable probability that, but for the district court's misapplication of the Guidelines, [he] would have received a lesser sentence.") (internal quotation marks and citation omitted)).

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Case: 09-60869

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Date Filed: 09/03/2010

D ia z next argues that the district court erred by failing to provide a s u ffic ie n t explanation for the 96-month sentence imposed and that the extent of t h e court's deviation was unreasonable. Diaz did not raise these objections in t h e district court; therefore, review is for plain error.5 Contrary to Diaz's

a s s e r t io n s , the district court provided detailed reasons for its sentence variance, e x p r e s s ly considering the factors of 18 U.S.C. § 3553(a).6 The district court b a s e d its sentence on Diaz's failure over ten years to register in any of the states h e lived in, the need for the sentence imposed to reflect the seriousness of the o ffe n s e , the need to deter future conduct given that Diaz failed to register d e s p it e being advised of his obligation, to protect the public, noting that Diaz did n o t object to the presentence investigation report's allegations that Diaz had e n g a g e d in a more recent incident of child abuse and had been found with child p o r n o g r a p h y , and to provide an opportunity for Diaz to receive adequate c o u n s e lin g . Diaz has shown no error, plain or otherwise, as to the adequacy of t h e court's reasons.7 Moreover, Diaz has not shown clear or obvious error

r e g a r d in g the substantive reasonableness of his non-guidelines sentence.8 I n his reply brief, Diaz contends for the first time that the district court im p r o p e r ly relied on an incident report filed with the Nevada police, we decline t o consider this argument.9 T h e sentence is AFFIRMED.

Lopez-Velasquez, 526 F.3d at 806; United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
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See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006). See id. at 708-10. See id.; Peltier, 505 F.3d at 392-94. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007).

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